The government of India has introduced ‘The National Environment Tribunal Bill 1992’ in Parliament to establish Environment Tribunals to deal with cases of compensation to victims of industrial accidents. The bill has been presented as the government’s post-Rio measure, in keeping with the pious pledges made at the Earth Summit to protect the environment.

The need for Environment Courts was first expressed by the Supreme Court of India in the Delhi oleum gas leak case in 1986. The apex court had suggested to the government of India that “Since cases involving issues of environmental pollution, ecological destruction and conflicts over natural resources are increasingly coming up for adjudication and these cases involve assessment and evaluation of scientific and technical data, it might be desirable to set up Environment Courts on the regional basis with a professional judge and two experts drawn from Ecological Sciences Research Group...”

The present bill, which the government claims is comprehensive environmental protection legislation providing for exclusive environmental tribunals, has turned out to be a damp squib. The bill is so ridden with lacunae that it is likely to serve little purpose. It will serve neither as a deterrent to control pollution or arrest environmental degradation, nor will it be an effective means to provide justice to the victims of environmental injury.

The bill has been introduced not with the objective to prevent environmental disaster, but to give relief to victims after it has occurred. Even as a piece of ‘disaster management’ legislation, it is only a half-hearted measure, as it excludes from its ambit the public sector, as well as municipalities causing large-scale pollution in the country. Clause 4 of the bill says that the central government may by notification exempt from the operation of this law any state government or local authority. The bill further excludes from the definition of ‘accident’ any damage caused by ‘radio-activity’. It may be pointed out that no such differentiation between hazardous industries has been made in the Environment Protection Act and other environmental legislation.

The Bill accepts the definition of ‘hazardous substances’ given in the Environment Protection Act, 1986, when exceeding such quantities as specified in the Public Liability Insurance (PLA) Act 1991. It excludes from its ambit several living micro-organisms/genetically engineered organisms or cells which have been declared as ‘hazardous substances’ by the government of India notification number 621 of December 5, 1989.

The jurisdiction of the tribunals does not extend to offences committed under the Environment Protection Act, Water Act, Air Act, Forest Conservation Act or any other environment related legislation.

Even with its limited scope, the proposed legislation suffers from serious lacunae. The right of access to information and legal aid for the poor should have been integral components of such a professedly novel legislation. How can citizens and victims with limited resources succeed against powerful and rich industries without these necessary components? Confining the locus to the aggrieved party and denying voluntary organisations or environmental activists the right to action, will reduce the efficacy of this legislation. It is inconceivable that poor people who are largely the victims of industrial accidents, can secure compensation without any support.

Environmental Courts
¨	To be set up in each state; to deal with cases of environmental pollution, ecological imbalance and depletion of natural resources.
¨	President to be judge or retired judge of High Court. Members to be selected by National Environment Commission
¨	Power to give preventive and conjunctive relief and compensatory relief.
¨	Will accept applications from any individual or environment group.
¨	Compensation to be claimed within three years; allegation cell of National Environment Commission, as in public interest litigation; cases to be disposed off in six months
¨	Legal aid cell to provide free assistance to individuals and groups.
¨	Right of access to information available.
¨	Appeals to be made to national environment court before being considered by the Supreme Court.
¨	Principles of civil liability to be followed in determining compensation.
Environmental Tribunal
¨	Benches to be set up in each state in phases; to decide compensation for damage caused to people, property and the environment by accidents while handling hazardous substances, except when caused by war or radio-activity.
¨	Chairperson not necessarily from the judiciary. Bureaucrat-dominated selection committee, headed by chairperson, to choose members for the Tribunal.
¨	Will have civil court powers, be guided by principles of natural justice, and will receive and decide claims for compensation.
¨	Will consider applications only from aggrieved people, or their representatives, and government - recognised environmental group.
¨	Claims for compensation for damage to be entertained within five years of occurrence of damage.
¨	No such provision.
¨	No such provision.
¨	Appeals to be made to the Supreme Court and only on substantial question of law, not facts.
¨	Specific compensation amounts not stated but linked to Public Liability Insurance Act.

Surprisingly, the bill also excludes the ‘workmen’ from the benefits of the legislation even though they may be victims of environmental disasters. Similarly under the cloak of secrecy, the Department of Atomic Energy can escape any liability to pay compensation for environmental damage and can also deny compensation to the victims of radiation in the event of an accident.

The absence of an inbuilt timeframe for adjudication of cases will lead to inordinate delays in the settling of claims. In cases involving environmental pollution and ecological destruction, there is no provision in the bill for the setting up of an independent ecological sciences research group to provide the needed scientific and technical assistance to the courts.

The bill lacks the provision of an independent Environmental Commission which should have been responsible for the appointment of judicial and technical members with the consent of the chief Justice of India, as originally provided for in the draft bill. Under the bill, a technical member can be promoted to the office of vice chairman and thereafter to that of the chairman. As Justice P.N. bhagwati points out, “I know that we have secretaries and additional secretaries who are persons of outstanding intellect and ability, but if we want the Environment Tribunal to carry credibility with the people and become effective substitutes of the High Courts, so that citizens who suffer on account of an accident would be induced to go to the Environment tribunal rather than High Courts, it is absolutely essential that at least the Chairman of the Environment Tribunal should be a sitting or a retired Judge of the Supreme Court or High Court. That alone will inspire confidence in the public mind or else it will become like any other Administrative Tribunal lacking public confidence and credibility.”

The National Environment Tribunal Bill is a bad replica of the original draft Bill on Environment Courts. By enabling only the affected persons, his authorised agent or an organisation recognised by the central government only to file applications for compensation, the bill dilutes the ‘locus standi’ provision in the Public Interest Litigation allowing any individual or institution to move the court under Article 72. A comparative study (given in the box) illustrate how the National Environment Tribunal Bill is a compromise document.

The above are only some of the shortcomings of the bill. Unless the tribunals are made effective and their jurisdiction is widened, the bill will remain an exercise in futility. The government should be open to constructive suggestions made by enviro-legal experts and should carry out necessary amendments in the bill and make the Tribunals a viable machinery in order to safeguard the interests of victims of pollution and save the environment from further degradation. q

(M.C. Mehta is a senior Supreme Court lawyer, who with
Justice P.N. Bhagwati, drafted the bill on Environment Courts).

Participatory Planning

The government’s experiment of micro-level participatory planning in 150 blocks during the first year of the Eighth Five Year Plan through the creation of a three-tier institutional system requires local communities at village, block and district level to diagnose needs, work out the priorities and implement plans using the collective wisdom of the poeple, knowledge of experts and administrative skills of government functionaries.

Every exernally imposed programme, which fails to involve people psychologically and socially, will be met with failure. On the other hand, a programme which is ‘internalised’ (i.e. formulated in consulation with the beneficiaries and implemented with the direct participation of the people, with external supporting structures), can have a fair degree of success.

Participative management of developmental programmes implies that people are provided with an oportunity to exercise effective influence and control over those decisions which bear on their life and well - being.

Field experiences gathered in regard to the implementation of the Integrated Rural Development Programme in different parts of the country point to one vitally missing link - people’s participation. A development programme meant to promote the well-being of the rural people must ‘centre’ around the ‘felt needs’ of the people. It must respond to the legitimate, articulated, felt needs of the prospective rural beneficiaries and msut not appear as if it were an ‘implanter’ (i.e. thrust from above) but a ‘facilitator’; it must facilitate self-help efforts through providing technologies and resources which are consistent with the clearly articulated felt needs.

A knowledge of the social dynamics of the rural community coupled with the formulation and implementation of programmes through an institutionalised rural leadership structure which facilitate the participation of rural people holds the key to rural prosperity.

In order to make people’s participatory planning at the grass-root level a success, the creation of people’s institutions and involvement of credible voluntary organisations/NGOs are the pre-requisites. Village Development Planning Committees (V.D.P.Cs) may be set up at the village. Economic self-reliance through mutually helpful co-operative action through participatory planning should be the basic philosophy of V.D.P.Cs.

The V.D.P.C’s will act as grassroot level structures through which both governmental and non-governmental organisations will help the villagers to make the maximum use of local resources; develop entrepreneurship among rural youth and women and motivate them to set up self-employment enterprises; create development awareness among the poorer sections and channelise and integrate their energies and resources for ‘improving the quality of their lives while within the carrying capacity of supporting eco-systems’.

Dr. N.V. Narayana, Professor of Economics, Sri Venkateswara University, Tirupati.